E-mails and Embryos: 21st Century Estate Planning
Under Michigan law, parents who die intestate (without a valid will or trust) are presumed to leave their estate to their closest relatives, starting with a spouse and children. But what are “children” under the law? Originally, illegitimate and adopted children were not considered to have inheritance rights. But Michigan law was amended to include them. Then the Legislature added children conceived by artificial means. Now, with frozen embryos and sperm, a spouse can still have the child of the other spouse after that person dies.
According to Lawrence W. Waggoner, a professor at the University of Michigan Law School, this child will not be a product of the marriage, since marriage ends at death, so estate planners need to include specific language in their documents to provide for such children.1 Waggoner says the current law is “inapplicable to posthumous conception by a deceased husband’s widow even if the deceased husband deposited the sperm before his death and signed a record indicating intent to be treated as the father.” Without specific language in estate planning documents, Waggoner explained it would be left to the “discretion of the courts to determine who qualifies” as a child. Waggoner also recommended including a time limit in which these children can be conceived after the death of one parent, allowing the surviving spouse to grieve, but not allowing the estate to be open indefinitely.
If you already have an estate plan in place, have you provided your beneficiaries access to your online accounts to cancel, save or change them? Without such provisions, you could achieve an unwanted Internet immortality because sites such as Facebook or Yahoo! don’t acknowledge your personal representative or trustee as having access rights to your accounts. According to Patricia Kefalas Dudek, of Dudek & Associates in Farmington Hills, and Howard H. Collens of Galloway & Collens PLLC in Huntington Woods, modern estate plans need to designate a “digital personal representative.” 2
“Decide who is in charge of those assets if you become disabled or when you die, and name that person as your digital personal representative with power to protect your assets,” Dudek explains. She and Collens suggest preparing a list of all e-mail accounts, social websites in which you participate, and online financial and commercial accounts.
However, if you do not want to share your passwords with another person while you are still alive, there are Internet applications that allow you to store not only your passwords but also your digital estate plan (for example, LegacyLocker.com or DataInherit.com). Dudek and Collens also suggest giving the personal representative access to a ClaimID.com account to find all of your personal websites without having to search all over the Internet. “Make sure you indicate whether you want your digital personal representative to archive your content, share your content with others, or delete it,” adds Collens.
Dudek and Collens recommend putting digital estate planning language in wills, trusts and powers of attorney. They specifically mentioned powers of attorney so, if you are temporarily disabled, someone is handling your online accounts, especially if you make bill payments online.
Currently, Dudek and Collens found that sites like Facebook and LinkedIn do not have language in their use agreements allowing anyone else to access pages after your death, so someone will need to know from you how to get into these accounts to modify or delete them. Dudek and Collens say they found very little litigation over these issues so far, but there will probably be more as these issues start to arise.
1 Lawrence W. Waggoner, “Class-Gift and Intestacy Rights of Children of Assisted Reproduction,” 51st Annual Probate & Estate Planning Institute, Acme, Michigan, May 19, 2011.
2 Howard H. Collens and Patricia Kefalas Dudek, “Estate Planning in the Digital Age,” Elder Law & Disability Rights Section of the State Bar of Michigan Fall Conference, Thompsonville, Michigan, September 21, 2011.
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Christine Caswell is a local attorney with a practice in elder law, estate planning and family law.